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“ Graphics for Damages Presentations: Putting the Pow into Ow ”

PRESENTERS: James D. O’Connor Maslon Law Firm Minneapolis, MN Michael Boucher Trial Consulting Services, LLC Tampa, FL. “ Graphics for Damages Presentations: Putting the Pow into Ow ”. American Bar Association Forum on the Construction Industry 2013 Mid Winter Meeting.

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“ Graphics for Damages Presentations: Putting the Pow into Ow ”

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  1. PRESENTERS: James D. O’Connor MaslonLaw Firm Minneapolis, MN Michael Boucher Trial Consulting Services, LLC Tampa, FL “Graphics for Damages Presentations: Putting the Pow into Ow” American Bar Association Forum on the Construction Industry 2013 Mid Winter Meeting

  2. Introduction • Computer generated evidence (“CGE”) is common today. • Animations and graphics are widely used in every forum (mediation, arbitration, trial). • CGE can be an effective and persuasive way to present what otherwise is simply a number crunching exercise: damages.

  3. Presentation Techniques • Video camera overhead (Elmo). • Presentation Boards. • Interactive computer presentation; e.g. Trial Director. • Tablets; e.g. Ipad.

  4. Legal Considerations • Demonstrative vs. Substantive. • Foundation. • Authentication. • Hearsay. • Scientific Evidence: Frye and/or Daubert.

  5. Technical Considerations • Use the appropriate technique in the appropriate way. • Identify failure points. • Redundancy – Redundancy. • Support personnel (in-house v. outsource). • Coordinate with the court and opposing counsel.

  6. Hypothetical • 25-story commercial building. • 16 month construction period. • GC encounters delay caused by concrete issues. • GC encounters delay caused by poorly coordinated design documents. • Project is delivered 60 days late. • Owner, GC, and Subs all claim economic damages.

  7. Owner’s Damages • The owner is claiming damages for loss revenues, temporary housing on executed leases and additional financing charges.

  8. Owner’s Damages

  9. Owner’s Damages

  10. Owner’s Damages

  11. Owner’s Damages

  12. Owner’s Damages

  13. Owner’s Damages

  14. Owner’s Damages

  15. General Contractor’s Damages • Contractor alleges that the delays are caused by poorly coordinated design documents.

  16. General Contractor’s Damages

  17. General Contractor’s Damages

  18. General Contractor’s Damages

  19. General Contractor’s Damages

  20. Subcontractor’s Damages • HVAC subcontractor is claiming damages due to issues with drawings, inefficient stacking of trades and interrupted installation of system and duct work.

  21. Subcontractor’s Damages

  22. Subcontractor’s Damages

  23. Subcontractor’s Damages(as drawn)

  24. Subcontractor’s Damages(as built)

  25. Subcontractor’s Damages

  26. Challenging CGE • Plan for a hearing in advance of the offer • Know how the software works • Concentrate the challenge on as many foundation elements as possible • Hearsay • Prejudice • Frye/Daubert

  27. Conclusion & Questions

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